**DISCONTINUED** Bryan Carter/Lowell - Overdraft Acc

[TedGee]

Hi There,

A Court claim came through on 1^st June from Bryan Carter (on behalf of Lowells), for a student account overdraft from 2006/2007 for £2403.16. I had a disagreement with the bank over charges which ultimately led to me defaulting on the account. The account hasn’t been used since 2008. And no correspondence has been entered into with the bank or any designated DCA since then.

Because of the above timescales I believed the debt to be ‘statue barred’. After doing some research online for a few days I filed a defence of statue barred on deadline day. Since then, I’ve realised I was a little too hasty and should have read more!

Received the ‘Notice of Proposed Allocation to the Small Claims Track’ on 17^th August. Also received a copy of Bryan Carters ‘Directions Questionnaire’( yes to mediation, no expert evidence, 0 witnesses for hearing). I’ve also received various letters from Bryan Carter attempting to come to some sort of agreement.

Sorry to be so long, but just have a few questions:

1. Read plenty of info relating to stature barred and overdrafts but still a little unclear. From my own paperwork I have DCA letters dating back to 7^th May 2009 requesting the full balance. Would this letter be counted as a ‘cause of action’, thus the limitation clock could start from here?

2. Since I’ve already filed a defence, is it now too late to request any information from Lowells or Bryan Carter? (CPR 31.14?)

3. Is there any benefits of agreeing to mediation if the statute barred defence is my chosen route?

Thanks in advance,
Ted.G

[FlamingParrot]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Hi There,

A Court claim came through on 1^st June from Bryan Carter (on behalf of Lowells), for a student account overdraft from 2006/2007 for £2403.16. I had a disagreement with the bank over charges which ultimately led to me defaulting on the account. The account hasn’t been used since 2008. And no correspondence has been entered into with the bank or any designated DCA since then.

Hi and welcome

Because of the above timescales I believed the debt to be ‘statue barred’. After doing some research online for a few days I filed a defence of statue barred on deadline day. Since then, I’ve realised I was a little too hasty and should have read more!

1. Read plenty of info relating to stature barred and overdrafts but still a little unclear. From my own paperwork I have DCA letters dating back to 7^th May 2009 requesting the full balance. Would this letter be counted as a ‘cause of action’, thus the limitation clock could start from here?

Overdrafts are payable on demand rather than on certain dates so you are correct that the cause of action is not when you last paid into the account but when the bank recalls the overdraft and sends a final demand. If a DCA was already on the case in May 2009 the overdraft would have been recalled before that so I'd say it would have been SBd on June 1st when the claim was issued. :whoo:

Received the ‘Notice of Proposed Allocation to the Small Claims Track’ on 17^th August. Also received a copy of Bryan Carters ‘Directions Questionnaire’( yes to mediation, no expert evidence, 0 witnesses for hearing). I’ve also received various letters from Bryan Carter attempting to come to some sort of agreement.

That's all generic stuff and part of the process. You need to return the questionnaire. It's always recommended to tick 'yes' to mediation, however, I can't see any reason to mediate if the debt is SBd. There is no need to object to small claims allocation but you need to provide details of your local court and any dates you wouldn't be available for a hearing in case it gets this far. No need for experts or interpreters and only one witness (yourself).

Mr Carter has been sending out those settlement letters along with his returned questionnaires to everyone to see if anyone bites. :nono:

Sorry to be so long, but just have a few questions:

2. Since I’ve already filed a defence, is it now too late to request any information from Lowells or Bryan Carter? (CPR 31.14?)

Yes, it is too late because Part 31 of the CPR does not apply to small claims track so you can only use that route before a claim is allocated, at this point they can safely ignore your request. :mmph: However, if they decide to take it all the way to a hearing, the court will order them to provide the documents they intend to rely on at least 14 days prior to the hearing, and Lowell/Carter don't have a good track record in that department so they may well end up having to discontinue. ray: ray: ray:

Bear in mind the burden of proof is on THEM to show somehow, the the debt is not SBd. :thumb:

3. Is there any benefits of agreeing to mediation if the statute barred defence is my chosen route?

As I said above, I shouldn't think so.

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanking you for the for the welcome and fast response Flaming Parrot ...Definitely feel a little more at ease now.

Just so I'm clear, If I say no to mediation and the case then moves to a court hearing. By law, they would have to send me some or all of the documents/evidence that they choose to rely on in court?

Reason I'm confirming is because I've seen in many posts concerning these lot, that they're coming up with 'phantom payments' and the like to try and keep SBd debts alive. Just didn't want to go court and them spring some phantom payments or docs on me that in that moment I wouldn't be able to defend. But if your saying they must present the info to me first (14 days?), then game on...I'm happy to take this all the way!

[FlamingParrot]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanking you for the for the welcome and fast response Flaming Parrot ...Definitely feel a little more at ease now.

You're very welcome, glad to be of help! :yo:

Just so I'm clear, If I say no to mediation and the case then moves to a court hearing. By law, they would have to send me some or all of the documents/evidence that they choose to rely on in court?

Mediation is really intended to reach a settlement and in most cases even when both parties agree to mediation it doesn't go ahead due to lack of documents, however, in this case if the debt is SBd you wouldn't want to look at the possibility of settlement in the first place.

If the claimant wishes to continue with the case all the way to court then they will have to supply the documents and they may not able to get their hands on them, bear in mind these debts are sold by the truckload without any paperwork, the have to request it from the original creditor who will be in no hurry to locate it, having sold the debt and written it off their books years ago! :grin:

This is an example where Lowell had no option but to discontinue their claim, what a shame, uh? :lol:

So, last thursday, I received a letter from my local county court with a date for the hearing. In the letter, it was ordered that each party supply the other with any evidence they intend to use in court, failure to do so may have the judge refuse to consider the document in court. So, i'm thinking i will finally receive something from these w***ers.

Lo and Behold, i do receive something alright. Just got home to a letter from Bryan, it is a Notice of Discontinuance!!!! This letter is the happiest thing to have happened to me in the months that this started. I am more than extremely happy and thankful to those that stuck with me throughout this process and to those that offered up their time to me..

:whoo:

Reason I'm confirming is because I've seen in many posts concerning these lot, that they're coming up with 'phantom payments' and the like to try and keep SBd debts alive. Just didn't want to go court and them spring some phantom payments or docs on me that in that moment I wouldn't be able to defend. But if your saying they must present the info to me first (14 days?), then game on...I'm happy to take this all the way!

Yes, they can't just spring a surprise at the hearing. With regards to phantom payments, you may wish to look at this case where they thought they were being too clever and went all the way to court with one of those and the judge dismissed their case: :juge:

Yay... time to chalk up another victory for the Beagles!
I just had my hearing where Lowells were represented, nevertheless the judge was not satisfied they had discharged their onus of proof that this matter was not statute barred.
The document they called a statement of account was not accepted as an accurate record, neither was it proved any alleged payment had been made therefore the claim was dismissed.
Grateful thanks to you all... @nemesis45, @FlamingParrot, @MIKE770 and @Kati I couldn't have done this without your help.

:high5: :high5:

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanks again Flaming Parrot...good info there, feel armed and ready no doubt!!! :thumb:...

Direction questionnaires completed and ready for post (recorded!). After that will just wait and see. Will keep this thread updated though as reading through many posts on here has been invaluable.

[philvasili]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Hello. Don't panic! Bryan Carter Solicitors are renowned for using bullying tactics in chasing 'debts' that aren't real. I've just defeated them in claim they brought against me from a non-existent debt I was supposed to owe O2. Even before we went into court they asked if we could call it off - I had counterclaimed - and both agree to walk away. I refused so we went into court. As soon as we sat down the judge told the legal agent BCS had sent along - they didn't have the balls to turn up themselves - that he effectively had no case because not one original document in support of their claim that I owed O2 around 400 was supplied to the court. She eventually threw out their case. I would suggest that anyone in similar circumstances who has BCS chasing them for money fight it and ask them to prove their claim with original documents. In most cases I've heard about - and including my own - they have nothing to back their bullying other than a knowledge of how to manipulate the law to scare people. I am deliberating as to whether to take out a private case against them because they supplied a doctored exhibit to their witness statement i.e. they lied to the court about the veracity of a document with the intention and objective of getting money from me. Fight them and don't be scared! If it does go to court ask them to prove their case with original documents and witnesses from the original creditors. Do not admit the debt.

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Just a quick update to say my case is in court in January. No paperwork has been filed by Bryan Carter with the court yet, so just playing the waiting game to see if they do. I have enough paperwork to prove the debt is statute barred, but as the onus is on them....well...as said, lets just wait and see.

Thanks for the story of your case Philvasili Made me smile and gives me more fight to see this through till the end!!!

[nemesis45]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Just a quick update to say my case is in court in January. No paperwork has been filed by Bryan Carter with the court yet, so just playing the waiting game to see if they do. I have enough paperwork to prove the debt is statute barred, but as the onus is on them....well...as said, lets just wait and see.

Thanks for the story of your case Philvasili Made me smile and gives me more fight to see this through till the end!!!

Hi, Make regular checks with the court if there is a stay in place you are not informed so Carter needs to apply for a stay to be lifted if there is one.

nem

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Hi Nemesis45, excuse my ignorance but what is a 'stay'?

[nemesis45]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Hi Nemesis45, excuse my ignorance but what is a 'stay'?

If a claimant has not replied to a defendants defence within 28 days of receiving it the court
will stay (Suspend) the claim, you don't get informed when this happens.

nem

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanks Nem. Yes Bryan Carter did reply to the court, and me and them both completed the Directions questionnaires. Case was allocated to small claims track and received Judges directions and hearing date. Phoned the court a couple of weeks ago and the hearing fee has been paid by Bryan Carter. Judges directions did state that any documents to be relied upon in court should reach all sides within 14 days of hearing date. As said, I do have documents to prove that this debt is statute barred (as in, no activity for over 6 years), but I'm wondering if I should send my witness statement and documents now or wait to see if Bryan Carter comes up with anything?

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Need advice again please.

Just realised I've made a mistake when completing/filing my defence. Defence sights Section 5 of Limitation Act for debt being statute barred, but as the debt was an overdraft I've just realised it should have been defended under Section 6. Is it possible to amend my defence? Hearing is in January!

[nemesis45]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Need advice again please.

Just realised I've made a mistake when completing/filing my defence. Defence sights Section 5 of Limitation Act for debt being statute barred, but as the debt was an overdraft I've just realised it should have been defended under Section 6. Is it possible to amend my defence? Hearing is in January!

Amend in your witness statement when yo do it.

nem

[TedGee]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanks Nem, I'm beginning work on the witness statement now...any advice on how to correctly word the defence amendment would be appreciated.

[nemesis45]

Re: Bryan Carter/Lowell - Overdraft Acc - Notice of Allocation to Small Claims Track.

Thanks Nem, I'm beginning work on the witness statement now...any advice on how to correctly word the defence amendment would be appreciated.

Just as a correction of a " clerical " error the DCA's tame solicitors get away with this sort of thing all the time!

nem,